P. v. Tolliver

P. v. Tolliver

Filed 8/18/08 P. v. Tolliver CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. MIRRIOUL JAMES TOLLIVER, Defendant and Appellant.

A120173 (AlamedaCounty Super. Ct. No. C153108)

Mirrioul Tolliver (Tolliver) appeals from a prison sentence imposed pursuant to a plea agreement. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see also Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.

I.                    FACTS AND PROCEDURAL HISTORY

An information charged Tolliver with first-degree residential burglary. (Pen. Code,  459.)^[1] It also alleged that he had six prior felony convictions, four of which were alleged to be serious felonies ( 667, subd. (a)(1)) and prior strikes ( 1170.12, subd. (c)(2),  667, subd. (e)(2)), for which he had served prison terms.

On September 11, 2007, Tolliver waived his constitutional rights and pled no contest to first degree residential burglary. He admitted one prior strike (alleged as his fifth prior). Pursuant to the plea agreement, the prosecution dismissed the first and fourth alleged prior convictions and amended the information to allege the second, third and sixth prior convictions as second degree rather than first degree residential burglaries; it was agreed that Tolliver would admit those three allegations as prior prison terms, each carrying one year in state prison. The agreed-upon aggregate term of sentence was 12 years in state prison, and the court advised Tolliver that, with back time, he would actually serve ten years in state prison at 80 percent. Tolliver acknowledged his understanding of the calculation of his sentence and the 12-year term. The parties stipulated to a factual basis for the plea based on the police report and the preliminary hearing transcript.^[2]

At the sentencing hearing on October 24, 2007, Tolliver was sentenced to 12 years in prison pursuant to the terms of the plea agreement: four years for the first degree burglary (the two-year low term doubled because of the prior strike), five years for the prior robbery strike/serious felony conviction, and three years for the three prison priors. Tolliver was awarded 849 days of pre-sentence credits, based on 567 days of actual time plus 282 days of conduct credits. The court imposed a restitution fine of $1,000 and a parole revocation restitution fine of $1,000, stayed pending successful completion of parole. Tolliver was represented by counsel at the hearing, and neither Tolliver nor his counsel voiced any objection or uncertainty as to the disposition.

Tollivers pro per notice of appeal, signed on December 19, 2007, and mailed from San Quentin State Prison on December 20, 2007, was filed on December 24, 2007. In his notice of appeal, Tolliver indicated that he was appealing solely from the sentence and other matters occurring after the plea.

II.                 DISCUSSION

Tollivers appellate counsel represented in the opening brief in this appeal that she wrote Tolliver at his last known address and advised him of his opportunity to file a supplementary brief and his right to request the court to relieve appellate counsel from representation if he so desired. This court has not received such a request or supplemental written argument from appellant.

We find no arguable issue on appeal. There are no legal issues that require further briefing.

III.               DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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^[1] All statutory references are to the Penal Code.

^[2] Because Tolliver challenges only his sentence and matters after the plea, it is unnecessary to set forth the facts underlying the offenses alleged against him.